From the initial planning stages of a farming practice or cellar, until the time when the land is eventually sold again, there are several aspects that may have negative impacts on the environment.

For this reason there are numerous laws related to conservation of the natural environment. The Constitution of South Africa (Act No 108 of 1996) also makes provision for the development of legislation in this regard. When legislation is not complied with, it may result in fines, imprisonment or even interdicts to cease production immediately. It is therefore in the interest of each producer and cellar owner to be knowledgeable about relevant environmental laws in order to minimise the risks of liability. The purpose of this article is to convey the practical implications of relevant environmental legislation in the viticultural and wine industry to producers and cellar managers.

Environment legislation relevant to usage of the soil

Impact studies
Agricultural enterprises and wine cellars are listed in terms of Article 21 of the Environment Conservation Act (Act No 73 of 1989) as practices that may impact negatively on the environment. An environmental impact study should therefore be completed before agricultural activities may commence or before construction or further development of cellars may take place, unless written indemnity to this effect is obtained.

Sensitive areas, fauna and flora
Wetlands are controlled by the Department of Agriculture as well as Nature Conservation and should at all times be protected against erosion, pollution or damage (Conservation of Agricultural Resources Act, No 43 of 1983). In terms of the Cape Nature and Environment Conservation Ordinance various fauna and flora have been declared endangered or protected species and may therefore not be removed or pruned without a permit, and must be conserved and monitored at all times. In terms of the National Monuments Act (No 28 of 1969) no archeological discoveries, graves or antiquities may be moved or removed without permission.

Cultivation of soil and construction
In terms of Articles 2 and 3 of the Conservation of Agricultural Resources Act, written permission must be obtained for the cultivation of soil that has not been cultivated for the last 10 years, or that has a gradient of more than 20% (or 12.5). When soil is being cultivated, or during construction practices, dust may cause a nuisance or damage to neighbours. Such persons then have the right to bring a civil suit against the owner in terms of Articles 27 to 29 of the Atmospheric Pollution Prevention Act (No 45 of 1965). Cultivated soil must be protected against water and wind erosion (Articles 4 and 5 of the Conservation of Agricultural Resources Act) by diverting run-off water from cultivated soil, delaying water speed, establishing rotating crops, limiting surface movement of soil particles, cultivating the soil outside periods of strong winds, maintaining natural flora at a right angle to prevailing wind directions and establishing wind-breaks.

Use of agricultural chemicals
In terms of Article 6 of the Conservation of Agricultural Resources Act, weeds and invader plants (a list of which is published in Government Notice 1048) must be controlled, even at cellars, so as to prevent spreading. According to the Occupational Health and Safety Act (No 85 of 1993) only trained persons may practice weed control. Only registered products for fertilisation, weed, pest and disease control may be used and recommendations on the label must be followed. Such actions may not cause air, soil or water pollution and protective clothing must be worn when these agricultural chemicals are used. Empty containers and excess chemicals may not be dumped in the soil or rivers and must also be stored separately (Fertiliser, Farmfeeds, Agricultural Remedies and Stock Remedies Act, No 36 of 1947).

Waste management
To erect a refuse dump site a permit is required and may be obtained from the Department of Water Affairs as expounded in Article 20 of the Environment Conservation Act (No 73 of 1989). The dump site must be situated more than 200 metres from the centreline of a Public road or more than 150 metres from the border of a National road. Waste must be efficiently managed and suitable containers must be available to store waste. Permits that are granted for the removal of waste usually require the following monitoring activities:

  • Quantities of waste dumped daily.
  • Types of waste dumped daily.
  • Daily compaction and covering of waste.
  • Inspection of boundary fences, gates and notice boards.
  • Ground water monitoring (boreholes).
  • Prevention of waste incineration.
  • Purification or treatment of all leachate, seepages and runoff from dump sites.
  • Control of access to dump sites.

Insecticides have been declared toxic waste and may only be dumped on a special dump site for hazardous waste which is subject to strict control. If a dump site does not comply with these requirements, the containers and insecticides should rather be removed by private enterprises. Skins, stems, lees, used filter material and other solid waste must be heaped on an impenetrable layer (such as cement or plastic) and covered against rain, so that organic acids cannot seep out to the detriment of soil and ground water before having decomposed sufficiently to serve as compost. This waste, as well as used sediment and filtration material, must be stored temporarily before being removed to prevent odours in neighbouring areas. Used filtration material and bentonite may be made available for the recycling of alcohol or tartaric acid to prevent exposure to soil and water.

Environment legislation involved in water usage

General
In October 1998 the National Water Act was published in the Government Gazette and the previous Water Act of 1956 has to a large extent been replaced. On 8 October 1999, Government Notice No 1191 was published in the Government Gazette (20526) (in terms of Article 39 of the National Water Act), in which the limits and conditions are expounded in terms of which a water user receives general authorisation to use water without first applying for a licence. However, the water user, be it of natural water or wastewater, must first register as a user, but does not require a licence if in compliance with the conditions as contained in the general authorisation (see Table 1).

Abstraction and storage of water
If a producer (or any other water user) abstracts more than 10 m3 ground water on any particular day (wetlands excluded), he/she must register as a water user with the Department of Water Affairs whereby a maximum quantity of either no, or 60, or 300 or 750 m3/ha/a ground water may be abstracted depending on the specific drainage area in which the property where the water usage will be exercised, is situated. If the producer abstracts more than 50 m3 surface water on any given day (wetlands excluded), he/she may abstract – after registration – up to a maximum of 25 litres/second for irrigation of 25 hectares of land at 6 000 m3/ha/a or for any other usage except irrigation up to 100m3 on any given day. If the user wants to stroe abstracted water, he/she must register as a water user if more than 10 000 m3 is being conserved. A maximum of 50 000 m3 will be allowed without a licence. The registered user must monitor the quantity of water abstracted or stored on a monthly basis and keep written records thereof for inspection by the responsible authority. This authorisation is only valid for 5 years from the date of publication of the Government Notice (8 October 1999), unless amended or the period is extended.

Irrigation with any wastewater
Since untreated wastewater of wine cellars, inter alia, does not qualify for disposal in natural water resources, wastewater must either be treated or irrigated. If on any given day a person wants to irrigate more than 10 m3 water originating from the production of, inter alia, fruit and vegetable cultivation, wine cellars, fish processing or domestic use, he/she must register as a water user and up to 500 m3 per day of this wastewater may be irrigated (for crop production, including grazing) provided that:

The electrical conductivity on any given day is less than 200 milli Siemens per metre (mS/m)

  • The pH is between 6 and 9
  • E. Coli is less than 100 000 per 100 ml
  • Sodium adsorption ratio (NAR) is less than 5
  • Chemical oxygen demand (COD) is less than 400 mg/l

If the COD value is higher than 400 mg/l, however, but less than 5 000 mg/l, irrigation after registration but without a licence may be up to 50 m3 only on any given day. The registered water user may then only irrigate above the 100 year floodline, or further than 100 metres from the edge of a water resource or borehole used for drinking water or animal water-hole, while no groundwater or surface water may be contaminated. The registered user must measure the quantity of water irrigated on a weekly and the quality on a monthly basis, at the point just before irrigation. Written records of this must be kept for inspection by the responsible authority. The area of irrigation must be demarcated on a 1: 50 000 topographic map and details provided of the crops under irrigation, irrigation techniques and details of emergency procedures. Waterlogging or damaging of soil, occurrence of flies and mosquitoes, bad odours, secondary pollution, penetration of any surface resources and unauthorised use of water by members of the public must be prevented at all times. Solid particles must be removed before irrigation and disposed of efficiently. Stormwater (rain water) originating from the irrigation area must be collected to prevent contamination of pure water. This general authorisation is only valid for 3 years from the publication of the Government notification (8 October 1999) unless amended or the period extended.

Discharging of purified wastewater in a water resource
This authorisation is only valid for the dumping of purified wastewater in a surface water resource. Anyone who wants to dump purified wastewater in terms of this authorisation must register this water usage before dumping any water. The registered person may dump up to 2 000 m3 purified wastewater in a water resource on any given day provided it complies with the quality requirements for the specific water resource. Certain water resources have been identified as listed water resources which means that the wastewater dumped in such water resources has to comply with stricter water quality requirements before discharging may take place. The quantity of water discharged must be determined on a weekly and the quality of the water on a monthly basis. This general authorisation is only valid for a period of 5 years.

Disposal of wastewater and storing of wastewater
If more than 1000 m3 wastewater is to be stored for disposal purposes on any given day (up to a maximum of 10 000 m3/property or up to 50 000 m3/wastewater dam system) the water user must register. If more than 500 m3 is to be stored on any given day for recycling purposes, it must also be registered (maximum of 5000 m3 will be allowed) and if more than 50 m3 wastewater is disposed of in an evaporation pan or wastewater dam system on any given day, it must also be registered (maximum of 1 000 m3 per day will be allowed). The same monitoring requirements pertain to all the above uses as explained under irrigation with wastewater. The wastewater catchment dams and disposal terrains both have to be situated away from a watercourse, above the 100 year floodline or alternatively further than 100 metres from the edge of a water resource or borehole used for drinking water or animal water-hole. This authorisation is valid for 5 years from the date of publication.

Other requirements in terms of the National Water Act
Any dam (including evaporation pans) with a capacity greater than 50 000 m3 and of which the wall has a vertical height of more than 5 metres, is declared as a dam with a safety risk. Such a dam must be registered in terms of Articles 117 and 120 of the National Water Act. Various control measures exist for the erection and maintenance of such a dam (Article 118).

Under no circumstances may water be polluted and steps will be taken by the Minister of Water Affairs to prevent pollution while he/she may take steps to clean up pollution. The clean up cost may then be recovered from the polluter (Polluter-Pays-Principle). Any polluting incident must immediately be reported to the Department of Water Affairs or to the police. Salinisation and waterlogging of irrigated soil must be prevented at all times. In terms of the previous Water Act of 1956, pollution of water was a punishable offence (Article 23). For the first offence the fine could be R50 000 and/or two years imprisonment and thereafter a fine of R1 000 per day until pollution ceases. The cost of the cleaning up operation was also for the polluter’s account. For a second offence the fine was R100 000 and/or four years’ imprisonment. The new Water Act sets no limit to the fine (Article 151) and imprisonment for the first offence is 5 years. For a second offence the fine is also unlimited, but it will certainly be more than indicated by the 1956 Act, while imprisonment may be 10 years.

Altering the beds, banks and course or characteristics of a watercourse may not be done without a licence (Article 21), even if the watercourse is erratic (Article 1). Furthermore no water may be wasted, even if the owner is in possession of a licence (Article 22). For farming enterprises and/or cellars the granting of a water licence will depend on the motivation to the responsible authority and a water management programme will have to be followed.

Conclusions and recommendations

  • Always keep permits/registration certificates/licences up to date. Remember that once the application has been submitted, it may take months before the permit is issued. Apply in good time and register all water usage.
  • Remember directives by Authorities are as good as permits.
  • Do not accept verbal authorisations by the Department of Water Affairs or other authorities. These should always be in writing.
  • Do not reach an oral agreement with the Department of Water Affairs concerning changes in permits or previous authorisations. Always insist that it is put in writing.
  • Never under estimate the expertise or powers of the Department of Water Affairs or other authorities.
  • Always comply with all the requirements of permits, registration certificates and authorisations.
  • If changes in technology, processes or procedures occur, the permits or certificates must be renegotiated.
  • Always prevent and restrict water pollution.
  • Pollution incidents must always be reported immediately to the Department of Water Affairs or the police.
  • If any land is purchased, insist on a written declaration in which all previous activities that may have caused pollution are mentioned. The land must be left in its original form by the previous owner. Identify all environmental risks and liabilities and include this survey in the sale or lease contract.
  • Identify all potential sensitive areas such as marshlands and other ecologically sensitive areas, since various laws will prohibit or complicate development of the land.
  • If the owner wants to sell or hire his land, identify all existing and potential environmental risks and liabilities, and declare all previous activities that may have caused pollution. If the above is omitted, a Minister may undertake the cleaning up operation, but charge the cost thereof to the owner.

 

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